Canadian Heritage Committee on April 18th, 2024

[Marc Serré, Liberal, Nickel Belt, ON]

Thank you, Ms. Giles Samson.

Mr. Brodie, you were the chief of staff for former prime minister Harper. You know this program. You said it was at arm's length earlier, but you were involved in the government here.

I'm a francophone from northern Ontario. You know that this program helped the Montfort hospital, the francophone hospital in Ottawa.

This program was also used for l'Université de l'Ontario français.

What do you say to minority official language organizations or individuals in Canada who need this kind of support? They do not have the necessary funds. The organizations do not have funds to take legal challenge all the way to the Supreme Court. They need a fund to ensure that language rights are respected in Canada.

What do you say to those organizations? The Conservatives abolished this program; you witnessed that. If a new Conservative government were elected in the near future, do you think it would cut this program a third time?

[Ian Brodie]

I understand that of course litigation is extremely expensive. It's expensive for all the organizations that are involved in different types of human rights and Charter of Rights litigation in Canada.

The point I've tried to make in my written submission is that over the course of the years, the Court Challenges Program has gone through the cycle of being created and cancelled and recreated again. In part it's because of the partial nature of the Court Challenges Program's coverage. For example—this is the point I tried to make in the written brief—during the course of the COVID pandemic crisis, there were all sorts of new government regulations and rules that came down that limited various civil liberties in the Charter of Rights and so forth. They were challenged by all sorts of groups across the country—I've listed some of them in the written brief—that were entirely financed by private means with no support whatsoever from the Court Challenges Program, as far as we understand.

[Martin Champoux, Bloc, Drummond, QC]

Mr. Chair, we do not have any interpretation.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Marc. Your time is actually up.

What is the will of the committee? The bells have started ringing. They are the 30-minute bells. Do you want to continue with the first round here? We have the NDP and the Bloc. If that's the will, we would go until about 5:30.

Go ahead, Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

I guess I'm actually curious whether the committee would maybe be willing to....

In the first round, we still have two more left, the Bloc and the NDP. That would take us to 10 minutes. Then I'm wondering whether perhaps we would have agreement to do maybe three minutes per party after that, which would still give us 10 minutes to vote.

[An hon. member]

No.

[Rachael Thomas, Conservative, Lethbridge, AB]

Well, we'll have the Bloc and the NDP, and then—

[Martin Champoux, Bloc, Drummond, QC]

Yes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay. What about two more minutes per party?

[The Vice-Chair, Conservative, Kevin Waugh]

Okay, the will, I think, is....

Let's finish the first round and see what's going on.

From the Bloc, we have Mr. Champoux for six minutes, please.

[Martin Champoux, Bloc, Drummond, QC]

Thank you, Mr. Chair.

I admit that I would have liked to be able to have a bit more time. Maybe there will be another round of questions after this one. I think Ms. Thomas's proposal was really very reasonable. This is also an interesting subject.

Mr. Rousseau, I am really pleased to have you with us today. Thank you for accepting the invitation. I know you have an extremely full schedule, as do the other witnesses, undoubtedly. I particularly appreciate your being here, since you have done a lot of work on cases that involve the values, and even the unique challenges, seen in Quebec, particularly regarding secularism and the protection of French.

I would like you to tell me a bit about the connection between the court challenges program and the values that are dearly held in Quebec and that differ in several respects from the values in other regions of Canada. From your experience, paint me a bit of a picture of those challenges as they relate to the court challenges program.

[Guillaume Rousseau]

Good afternoon.

Thank you for the question.

We know that the program really has been used several times, and unfortunately with success, to challenge the Charter of the French Language, which, as you know, is one of Quebec's most important laws when it comes to defending its distinctive character. So this program was created for that, to be used for that. We know this. It is documented. Not only has that weakened Bill 101, but there is also every indication that the subsequent decline in French is directly related to this weakening of the act, as a particular effect of the judgments resulting from actions funded by this fund. So this fund, in my opinion, is directly connected with the increasing fragility of French.

The same thing is happening with the Act respecting the laicity of the State. We have been informed that the English Montreal School Board, the EMSB, has received money from this program, and this suggests that the fund will be used to finance groups that already have a lot of money. The EMSB has funds with millions of dollars. It is very well subsidized.

So it is not just small not-for-profit organizations, NPOs, or individuals who are less well off who benefit from the program. The EMSB is very wealthy. Should the cases where the program can provide funding not be limited solely to NPOs or individuals? That is another question.

These two cases, secularism and French, clearly illustrate that a lot of the time, this program is used to damage Quebec's interests and distinct character.

As a lawyer who is often involved in cases where my clients are defending Quebec's distinctiveness, we see that the other parties opposing us and opposing Quebec's distinct character have access to this program, which is not the case for my clients.

Apart from the appearance of partisanship that my colleagues have rightly raised, there is a problem, and the concrete results make it clear that there is a bias against Quebec in the cases funded by this program.

[Martin Champoux, Bloc, Drummond, QC]

I find what you are saying interesting.

I would connect it with what Mr. Serré said earlier when it was his turn to ask questions, when he was talking about the usefulness of this program, which made it possible, for example, to save Montfort Hospital in Ontario, and also the Université de l'Ontario français. It is not a bad program. It has its use. However, the way it is organized may make it easy, as you say, for it to be used by opponents of legislation enacted by Quebec's National Assembly, particularly those who take aim at protecting French and secularism.

I do not think this is an easy idea to apply, but earlier, one of the speakers proposed that there be representatives of political parties on the selection committee for members of the CCP's expert panels.

At first, I would have said spontaneously no, but I am thinking that this would allow for a kind of guard dog at the source, upstream, someone who could say that one or another case is flatly contrary to Quebec's values, or for any other reason, and it cannot be supported.

Do you think that could be a solution? If not, how could this program be supported, if we want to support it and at the same time also protect the values that Quebec espouses?

[Guillaume Rousseau]

I think it is not a bad idea to include experts, including experts from academia, but that does not mean there cannot also be parliamentarians. It is not really a bad idea for there to be a parliamentary process upstream of the experts being appointed. At the National Assembly of Quebec, there are often appointments approved by a qualified majority, that is, two thirds of the parliamentarians, which means that it very often cuts across party lines. A similar process could be imagined for this committee.

The other possibility I raised is this. Hypothetically, if Quebec had special status and this program could not be used to challenge Quebec legislation, that would have to be taken into account in the appointment method. As I said, ideally, I would like this program to be used more for the defence or broad interpretation of Quebec legislation that grants language rights, such as Bill 101, or that grants fundamental rights, such as the Quebec charter of human rights and freedoms, or the Act respecting the laicity of the State, which grants the right to secular public services. Based on that, certain members of the committee, certain experts, could be appointed by the Government of Quebec. That would be another way to do it.

Ultimately, what is needed is transparency. It is fine to talk about national significance, but we do not know exactly how that criteria is interpreted by the experts. Having a better appointment method does not mean there is no need for transparency downstream.

[Martin Champoux, Bloc, Drummond, QC]

You are talking about transparency, and I think that is a very important concept. In fact, a number of witnesses have told us that transparency was missing from the bill.

Do you think we should know the identity of the applicants, and once the cases have been decided, because I am not talking about cases in progress, we should be able to know who the applicants are and what cases have been funded?

[Guillaume Rousseau]

Yes, I think that really would be justified.

The bill as it now stands talks about an overview of the cases, and that is much too minimal. In my opinion, the professional privilege argument is limited, because no one is obliged to take the money. There are conditions attached to the money. These are public funds. It's fine to say that people who are less well-off have as many rights as wealthier people, but these are public funds. Normally, that comes with transparency obligations.

[Martin Champoux, Bloc, Drummond, QC]

Thank you, Mr. Rousseau.

[Guillaume Rousseau]

Thank you.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you very much.

We'll move to the NDP and Ms. Ashton for six minutes.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thank you.

I want to thank Ms. Jabir for joining us today and sharing her testimony.

I want to begin by recognizing that West Coast LEAF, which is almost 40 years old, came out of the struggle for gender equality in our country. Of course, we know it is very much connected to the fight for section 28 in the Charter of Rights and Freedoms. It is an organization that has been in this fight for a long time and is one that deals with many of the court challenges, whether on section 15 or 23, that the Court Challenges Program funds.

I want to go back to the Harper era, when the Court Challenges Program was cut.

Of course, many of us were involved in fighting back against that decision. I'm wondering if you could share a bit about what that meant for the rights of women, people living with disabilities, indigenous peoples and others who, for a number of years, did not have recourse through the Court Challenges Program. To what extent did that cut set us back as a country?

[Humera Jabir]

Thank you very much.

I think what's important for the committee to keep in mind as it makes its deliberations is that accessing the judicial system, for those in equity-seeking groups—indigenous communities, people facing disabilities or otherwise marginalized groups—is never a first resort. Often litigation is preceded by years of advocacy, including grassroots advocacy and engagement with legislators such as yourself, in order to try to bring forward the issues that are being experienced in these communities. Because of the cost of litigation, it is usually not the first resort for any of these groups or communities. Bringing forward cases takes considerable fundraising and efforts by average Canadians to try to build a community up around the issues that are important and need to be addressed.

I'd like the committee to certainly sit with this—that litigation is often a last resort to try to protect constitutional rights and create change. For those who need to access CCP funding in order to bring cases forward, it is usually a considered decision. They are bringing forward cases for which there is a strong rationale and often a long history of efforts to bring about change on issues of importance to the equity-seeking groups and to try to uphold those constitutional rights in a way that hasn't been possible to date.

I think it's very important for the committee to recognize that access to justice is fundamental. It must be available and accessible to everyone in a meaningful and consistent way. What the CCP offers is a small part of what the total cost of bringing cases forward requires.

Constitutional litigation is an evolving area, in which all cases that are brought forward have the potential to enrich and refine the laws, rights and entitlements of all groups. Certainly, our focus is on how to enrich constitutional law, recognizing that the cases brought forward and adjudicated by the courts have the potential to impact the public interest, not only for one group but also for many.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thank you for sharing those critical points.

You talked a bit in your testimony about the need to expand the legislation in front of us. That's something we've heard from other witnesses as well.

Do you think we should expand the Court Challenges Program so that it covers other parts of the charter? What would you like to share with the committee on this front?

[Humera Jabir]

Certainly, some of the other parts of the charter not currently included are covered by criminal legal aid. We are able to see development on the charter with respect to those areas.

Our emphasis is on provincial and territorial jurisdiction cases because, as I shared in my remarks, although cases such as the Andrews decision and the CCD case may not involve federal laws, policies or practices, the outcomes of those cases have impacts across the nation for public interest litigants, for the development of constitutional law, and for how constitutional law is interpreted and applied not just for one group but also for everyone.

It is very important that the question on the table considers the evolution of constitutional law, the impacts it has on many groups and the development of the law. These are very challenging and important questions. One constitutional decision can have an impact on many others with respect to remedies available and how systemic issues are approached.

It is therefore very important that the question of what cases are considered is one that takes into account broader implications, including how constitutional jurisprudence is going to advance.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thank you very much.

I see that I have one minute. I'll quickly go back to your point about how groups do not take lightly the decision to take the government to court.

We know that many court cases take a very long time. I'm thinking of the first nations child welfare case that took nine years. We know how costly this can be.

In juxtaposition with private groups with significant amounts of money—often acting on behalf of corporations in the oil industry, the mining industry, etc.—how important is it to recognize what marginalized groups are up against and what defending their rights ultimately means for all of us?

[Humera Jabir]

It's essential.

I would add that there are not only financial consequences of trying to bring these cases forward. Litigation that lasts years has an emotional consequence, a psychological consequence. Bringing these cases forward places an extremely high burden on groups, especially those who face discrimination in our society and who are otherwise marginalized.

The CCP has funding for trials. It has funding for motions and for appeals.